F v M
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 23 November 2021 |
| Neutral Citation | [2021] EWHC 3133 (Fam) |
| Docket Number | Case No: ZE17P01593 |
| Year | 2021 |
| Court | Family Division |
[2021] EWHC 3133 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
Case No: ZE17P01593
Mr Sam Momtaz QC and Miss Annabel Barrons (instructed by Dawson Cornwall) for the Applicant
Miss Maggie Jones (instructed by Duncan Lewis) for the Respondent
Hearing dates: 17 th November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Hayden
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
In January 2021, I handed down a judgment following a ten-day fact-finding hearing. The case involved allegations of conduct and behaviour by the father (F) in this case, in two separate relationships, which I found to be coercive and controlling. That judgment is reported as F v M [2021] EWFC 4 (Fam). What requires to be emphasised is that F's behaviour was strikingly similar in both relationships, notwithstanding that the two women involved were of different ages and living in very dissimilar circumstances. The application before me today concerns the children of F and M (the mother, as reported in the earlier judgment).
F seeks a Child Arrangements Order to spend time with the children; and a Specific Issue Order to change the name of the younger child. M seeks a Specific Issue Order divesting F of parental responsibility; permission for disclosure of documents filed within the proceedings to the police and to the Home Office and disclosure of documents from F's immigration solicitor, identifying the case reference details of his failed application to remain in the United Kingdom. F has overstayed his leave to remain by some 7 years. I recall he told me in evidence how surprised he was that he was “still here”, as he put it.
The substantive findings in my judgment have been conveniently and helpfully summarised by Mr Momtaz QC and Ms Barrons who appear on behalf of F:
i That the applicant father coercively controlled the respondent mother throughout the relationship by preventing her access to ante-natal care, isolating her from her family, friends and peers, controlling her money and food and deliberately curtailing her freedom, also amounting to emotional abuse.
ii That the applicant father raped the respondent mother, probably on more than one occasion, during their marriage.
iii That the applicant father's conduct during the relationship, resulted in Y being exposed to emotional harm.
Specific findings in judgment
iv the sinister, domineering and, frequently, tyrannising complexion of F's behaviour
v F's behaviour strikes me as sadistic and it requires to be identified as such
vi In his evidence I found F to be histrionic, self-pitying and manipulative
vii I consider F to be a profoundly dangerous young man, dangerous to women who he identifies as vulnerable and dangerous to children. The risks he presents to women are not only to their emotional and physical well-being but also, in the light of my findings, to their sexual safety. It is clear that he has the capacity to cause much harm and distress to those who cross him more generally, particularly those within the sphere of the women he controls. It has been a disturbing case to hear.
viii It is an understatement in this case to say that F lacks credibility. He is at times a fantasist.
I agree with Mr Momtaz's characterisation of these findings as serious and far reaching. It should be noted that I made findings of a similar complexion in respect of F's subsequent partner.
The Cafcass Officer, Ms Kathleen Cull-Fitzpatrick has prepared a report for these proceedings dated, 11 th October 2021. Though Ms Cull-Fitzpatrick was able to visit the children and the mother, her attempts to contact F were unsuccessful. She contacted him on the telephone number he had given her but that was not receiving calls. She sent F a number of emails to which she received no response and contacted F's solicitors to ensure that she had the correct address. They confirmed that she had.
The Cafcass officer made the following observations in her most recent report:
“As detailed earlier within this report, [F] has not engaged with me during the course of my assessment and therefore I have no direct knowledge of his views or opinions on the issues before the court. From the information within the court papers, it appears that he does not recognise that he has perpetrated domestic abuse. His behaviour is indicative of severe coercive controlling behaviour, including sexual, physical and emotional abuse. Without [F] having accepted or addressed his behaviour, I am of the view that he continues to present a high risk to the children and [M].” (paragraph 29)
Later in her report, the Cafcass officer expresses her conclusions thus:
“I have considered [F's] capacity for change, from the information available to me I have formed the view that, it does not appear [F] recognises that he has perpetrated domestic abuse. Nor has he been able to demonstrate insight into the consequences of his behaviour or taken any responsibility for his actions. [F] has not demonstrated a willingness to change but rather he continues to challenge the findings made about him and preserve his needs in securing that the information against him within these proceedings is not disclosed to the police or immigration services.” (paragraph 35)
In a statement filed on the 9 th April 2021, F makes the following assertions:
“ I would like the Court to know that since reading the Judgement, I have been taking the time to work on myself. In particular, I have made enquiries with the Centre for Justice Innovation as to the ‘Promoting Positive Relationship Programme’ which is an integrated group work intervention programme developed for adult males who have demonstrated the potential to be abusive in intimate relationships. This programme focuses on providing cognitive and behavioural skills and tools to support and promote the use of positive behaviours within intimate relationships. I am in agreement to the terms of participation in this programme and am prepared to attend this course.”
F provides a summary outline of the proposed work:
The programme runs for 6 months over a maximum of 24 sessions, each 2 hours long. The initial 3 months occur on a one-to-one basis and the following 3 months take place in a group format. The sessions will take place once a week and are currently running on a virtual basis. The organisation hopes to resume in person sessions in due course and they have confirmed to me that there is currently availability on the programme.”
The essence of F's application is that he is effectively prohibited from engaging with the Cafcass officer or the Court more generally, because to do so might incriminate himself and potentially expose him to prosecution. Mr Momtaz articulates his client's position as follows:
“F makes this application in order to protect himself against self-incrimination. As set out in this document, the nature of these proceedings are such that F is in a position where he must choose whether to stay entirely silent in these proceedings to avoid incriminating himself or whether to engage with questions put to him about the extent to which he ‘accepts’ the findings that have been made against him. That applies both in respect of his own application for Child Arrangements Orders or in his defence of the Mother's application to ‘remove’ his parental responsibility.”
The argument is developed more broadly:
“For the reasons set out in this document, that position is neither ‘fair’, within the meaning of Article 6 ECHR and the Overriding Objective, nor is it in the best interests of the subject children within the meaning of s.1(3) Children Act 1989.”
This reasoning led Mr Momtaz to submit:
“F will say that the most appropriate means by which this court should redress that position is to rule that any statement or admission that he makes (if any) will not be disclosed to the police. By removing the prospect of F incriminating himself in that way, both parents will have the opportunity for full engagement within the court process, and the proceedings will operate most effectively in the best interests of the children.”
The thrust of this submission requires to be confronted directly. It is argued on behalf of F that the Court should make a prospective determination that nothing should be disclosed to the police in respect of any written statements made by the father in which he makes any admissions in respect of the findings. This is extended to include any admissions he may make in oral evidence.
I have not been told, at this stage, whether F is contemplating making any admissions. Certainly, nothing has been reduced to writing. Accordingly, I am being asked to make a decision concerning material which, at present, does not exist and in respect of which, axiomatically, I can make no evaluation. I am in an evidential vacuum, being asked to fetter my own discretion in respect of entirely unknown material. Rarely, this may be necessary, for example in cases involving national security, but generally and for obvious reasons it is undesirable.
On behalf of F Mr Momtaz highlights the principle of a...
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